Cardona v. State
| Decision Date | 17 December 2015 |
| Docket Number | NO. 02-15-00036-CR,02-15-00036-CR |
| Parties | RICHARD CARDONA APPELLANT v. THE STATE OF TEXAS STATE |
| Court | Texas Court of Appeals |
FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
Appellant Richard Cardona appeals from his conviction for aggravated assault with a deadly weapon—a firearm—and 40-year sentence. We reverse the trial court's judgment and remand for further proceedings. See Tex. R. App. P. 43.2(d), 43.3.
In the early morning hours of September 1, 2013, Cardona was attending a relative's birthday party at a local bar. Cardona was wearing a white baseball cap and a white shirt with blue, horizontal stripes. When the bar closed at 2:00 a.m., Cardona and several other people began leaving the bar from the front entrance. After getting into a physical and verbal argument with several unidentified men, Cardona said he was going to go get "something,"2 left the area to get his car from the bar's back parking lot, and drove to front of the bar. He stopped the car in the middle of the street, got out with a gun, began shouting expletives and epithets to a group of people, and shot four times into the group. As he was running back to his car, he shot two more times over the hood of his car into the group. Cardona's wife, who was involved in the fight, confirmed that the man in the video shooting a gun was Cardona. Ann Huffhines, who was standing near the group of people and next to Cardona's relative, was shot, resulting in "holes" in her right shoulder and both sides of her jaw and in a bullet wound to her neck.3 A Marine medic in the area quickly acted to save Huffhines,and she recovered. Six forty-caliber bullet casings were found near where Cardona was standing when he fired the gun six times.
A grand jury indicted Cardona with aggravated assault with a deadly weapon—that he intentionally or knowingly caused bodily injury to Huffhines by shooting her with a firearm, a deadly weapon. See Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2015), § 22.02(a)(2) (West 2011). The indictment also contained a repeat-offender notice, alleging that Cardona had been convicted of aggravated robbery with a deadly weapon—a knife—in 2004. See id. § 12.42(b) (West Supp. 2015). Cardona pleaded not guilty to the indictment.
At trial, Huffhines testified that when a disturbance broke out in front of the bar, the man she was with that night took off his shirt and walked away from her, presumably "to go into the fight." She testified that a man wearing a solid, blue shirt and black pants then walked up, pointed a gun at her, fired multiple times, and hit her in the neck. She also had wounds to her jaw and right shoulder. She did not see anyone else with a gun. Huffhines stated that there was only one shooter that night—the man in the solid, blue shirt—and that the lone shooter was the person who shot her. The jury viewed video from the bar's security cameras that showed a man in a striped, white shirt and white baseball cap get in a fight with another man, go get his car from the back of the bar, pull around to the front of the bar, get out of the car to yell obscenities at a group of people, and shoot a gun six times into the group. A waitress at the bar told investigating officers that the shooter was in a striped shirt and testified at trial that he hadbeen with a group celebrating a birthday the night of the shooting. She identified Cardona as the shooter in a pretrial photographic line-up. Cardona's counsel conceded during opening and closing arguments that Cardona shot and hit Huffhines two times, but urged that his actions amounted only to deadly conduct.
During the charge conference, Cardona requested that the court instruct the jury on the lesser-included offense of felony deadly conduct:
The evidence was uncontroverted by the victim that someone else shot her. So if she got shot by someone else, then my client may have merely pointed a gun in her direction and discharged it and not hit her. She testified that someone in a blue shirt coming across the street shot her.
The trial court clearly grasped the legal basis of Cardona's request, but denied it:
But I do fully understand your position is that it's raised that a third individual shot and, therefore, what is shown on the video is your client firing a gun and if your client didn't hit anyone, all he's done is deadly conduct. I do understand your request. That will be denied.
The jury was charged on the offense of aggravated assault with a deadly weapon causing bodily injury, on the justification defense of defense of a third person, and on transferred intent in the context of criminal responsibility.4 See Tex. Penal Code Ann. §§ 2.03, 6.04(b), 9.02, 9.33 (West 2011).
The jury found Cardona guilty of aggravated assault with a deadly weapon. Cardona pleaded true to the repeat-offender notice. Because Cardona did notfile a pretrial election for the jury to assess his punishment, the trial court found the repeat-offender notice true and sentenced Cardona to forty years' confinement. See Tex. Code Crim. Proc. Ann. art. 37.07, § 2(b) (West Supp. 2015). Cardona now appeals and argues that the evidence was insufficient to show that he shot Huffhines and that the trial court erred by failing to include a jury instruction on the lesser-included offense of felony deadly conduct.
In his first point, Cardona argues that because Huffhines described a different shirt than the shirt he was wearing at the time of the offense, there was no DNA evidence linking him to the assault, and no definitive eyewitness testimony identified Cardona as the shooter, the evidence is insufficient to sustain his conviction. In our due-process review of the sufficiency of the evidence to support a conviction, we view all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789 (1979); Dobbs v. State,434 S.W.3d 166, 170 (Tex. Crim. App. 2014). We may not assess the sufficiency of the evidence by focusing on evidence the State did not introduce. Chambers v. State, 711 S.W.2d 240, 245 (Tex. Crim. App. 1986).
The trier of fact is the sole judge of the weight and credibility of the evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (West 1979); Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim. App. 2013). Thus, when performing an evidentiary sufficiency review, we may not re-evaluate the weight and credibility of the evidence and substitute our judgment for that of the fact-finder. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). Instead, we determine whether the necessary inferences are reasonable based upon the cumulative force of the evidence when viewed in the light most favorable to the verdict. Sorrells v. State, 343 S.W.3d 152, 155 (Tex. Crim. App. 2011); see Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013). We must presume that the fact-finder resolved any conflicting inferences in favor of the verdict and defer to that resolution. Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Temple, 390 S.W.3d at 360.
Cardona is correct that no DNA or fingerprint evidence connects him to the offense. But we may not focus on what evidence is missing. See Chambers, 711 S.W.2d at 245. We must focus on the admitted evidence and determine whether the inferences from that evidence are reasonable based upon the evidence's cumulative force when viewed in the light most favorable to the verdict. Therefore, the absence of DNA or fingerprint evidence does not, ipsofacto, result in a conclusion that the evidence was insufficient to support the jury's verdict. Cardona next argues that the evidence is insufficient because no eyewitness definitively identified him as the shooter. This argument strays from the appropriate standard of review. We may not evaluate a witness's credibility as that is the sole province of the fact-finder. See Tex. Code Crim. Proc. Ann. art. 38.04; Winfrey, 393 S.W.3d at 768. Thus, in accordance with this review standard, we look to the cumulative force of the admitted evidence in the deferential light most favorable to the jury's verdict.
The evidence admitted at trial, including the video of the offense, established that a man in a white, striped shirt and a white baseball cap shot into a group of people after getting into a fight while exiting a bar. Cardona was wearing a striped shirt and white baseball cap the night of the shooting, and his wife confirmed that the shooter on the video was Cardona. Indeed, Cardona's attorney did not dispute at trial that Cardona shot a gun that night. The video showed Cardona shooting a gun six times, and six bullet casings were found in the area near where Cardona was standing when he fired the gun. The fact that Huffhines testified that the shooter was wearing a solid shirt does not detract from the video evidence, Huffhines's remaining testimony, or the other eyewitness testimony connecting Cardona to the shooting and Huffhines's injuries. See Anderson v. State, 461 S.W.3d 674, 679-80 (Tex. App.—Texarkana 2015, no pet.) ( evidence sufficient to support aggravated robbery conviction even though no identification of defendant at trial because jurysaw video of robbery and could compare video to appellant's appearance at trial); see also Turro v. State, 867 S.W.2d 43, 47 (Tex. Crim. App. 1993) (). The cumulative force of the video evidence along with testimony from other witnesses who were present at the bar shows that the jury's verdict was based on the reasonable inference that Cardona was the shooter that caused Huffhines's bodily injuries. Thus, the evidence was sufficient, and we overrule Cardona's first point.
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